Witnesses May Have Been Flawed, but Prosecutor Played Hand He Was Dealt

By ALAN FEUER

Published: April 27, 2008

Five days before the Sean Bell trial began, Richard A. Brown, the Queens district attorney, under pressure to talk about what everyone knew would be a fraught and contentious case, told reporters, ''The case should be tried in the courtroom and not on the courthouse steps.''

Now, of course, it has been. And it did not turn out well for Mr. Brown.

The three detectives accused of killing Mr. Bell in a spray of 50 bullets after his bachelor party on Nov. 25, 2006, were acquitted on all counts at the seven-week trial in State Supreme Court in Queens. Moreover, the judge who issued the verdict, Arthur J. Cooperman, criticized the prosecution's presentation, saying that several inconsistencies had the effect of ''eviscerating the credibility'' of certain state witnesses. The judge added that the testimony of those witnesses ''just didn't make sense.''

Mr. Brown, 75, who has been the district attorney in Queens for nearly 17 years, is a former judge who has been around the New York law enforcement world so long that in 1977 he presided over the arraignment of the ''Son of Sam'' serial killer, David Berkowitz.

Still, defense lawyers, former prosecutors and other interested observers have begun the inevitable process of dissecting his handling of the Bell case.

''The case was flawed from the beginning and probably shouldn't even have been brought to indictment,'' said Marvyn M. Kornberg, a defense lawyer with a longstanding practice in Queens. ''There was conflict in the testimony, not only internally with each witness, but externally, between the witnesses. Those are the kind of witnesses you put on the stand?''

Monday-morning lawyering is, of course, a significantly painless task, and nothing about the Bell case was painless for those who were directly involved. After the shooting, outside the Club Kalua in Jamaica, the city felt the wrath of a storm of community outrage and racial anger.

Mr. Brown was at its center, monitoring the Internet for updates at 5 a.m. on the day it occurred from his weekend house in Litchfield County, Connecticut. Days later, he met with the Rev. Al Sharpton and Mr. Bell's relatives to explain the investigative process.

When the indictments were announced, he appeared at a news conference to say that the investigation had drawn on 100 witnesses and 500 pieces of evidence and that the grand jury proceedings were ''as thorough and complete as I've ever participated in.''

''I think he presented the case he could present,'' said Joseph G. Sulik, another Queens defense lawyer, who watched parts of the trial. ''He has to put the people who were there on the stand -- you have to take them, good or bad.''

And, clearly, they were both. Several witnesses, including some of Mr. Bell's childhood friends, provided testimony that seemed to better serve the three detectives charged in his killing: Gescard F. Isnora, Marc Cooper and Michael Oliver.

Much of that testimony involved the central defense question of whether there was an armed man present when the police opened fire. Accounts differed about an argument that Mr. Bell had outside the club with a man dressed in black, later identified as Fabio Coicou. Detective Isnora had said that he followed a member of Mr. Bell's party, Joseph Guzman, from the club because he thought Mr. Guzman was going to retrieve a gun.

One of Mr. Bell's friends who witnessed the argument from several feet away, Hugh Jensen, testified that the exchange between Mr. Bell and Mr. Coicou was benign. But he said on cross-examination that he believed Mr. Coicou was armed. Another friend, Larenzo Kinred, told investigators that he believed the man was armed or pretending to be armed. And Mr. Coicou contradicted his own grand jury testimony while testifying, recanting a prior statement that he had heard one of Mr. Bell's friends say he was going to get a gun.

A former federal prosecutor, Alan Vinegrad, who tried the Abner Louima police brutality case, after Mr. Louima was tortured with a broken broomstick in a Brooklyn station house in 1997, said that Mr. Brown's office had a very difficult job in the Bell case. At the same time, he wondered why so many state witnesses -- there were 50 -- were called to the stand.

''The prosecution called numerous witnesses to testify about a relatively short sequence of events,'' Mr. Vinegrad said. ''And doing that created the kind of inconsistency that is basically reasonable doubt.''

Joseph Tacopina, another former prosecutor and a defense lawyer who represented one of the officers in the Louima case, said that Mr. Brown had no choice but to approach the case with the witnesses he had.

''There are facts beyond change, and the best prosecutor in the world can't do anything about that,'' he said. ''You're only as good as the witnesses you're given.''

It is never comfortable for a district attorney's office, which relies upon the police to investigate crimes, to prosecute officers. Some lawyers, like Mr. Tacopina, said it was an open question that Mr. Brown might have sought an indictment in the case to quell the political winds and racial tensions that were rising soon after the shooting.

Mr. Kornberg, the defense lawyer, went one step further, suggesting that by taking the case to trial Mr. Brown had forced Justice Cooperman to assume the burden of decision.

''It took the political pressure off Brown, didn't it?'' Mr. Kornberg said. ''He could say, 'Now the court has spoken. I did what I had to do. I presented everything to the judge, and he found against me.' ''

In a statement after the verdict, Mr. Brown ran down a list of statistics from the trial: 28 days, 60 witnesses, 900 exhibits, a transcript that ran 5,400 pages. While he made no mention of the strategy his office had pursued at trial, he said it was essential to continue the ''public debate'' that the case had brought about ''through passionate and reasoned argument.''

In an interview in December 2006, only days after the shooting, Mr. Brown was asked whether the case might turn out to be a career-breaker rather than a career-maker.

His answer?

''What you're suggesting is, 'You're damned if you do and you're damned if you don't,' '' he said. ''But I'm not here because it's a cushy job. I'm here because I want to do the right thing.''

PHOTO: Richard A. Brown, the Queens district attorney, said that the public debate spurred by the Sean Bell case should continue.(PHOTOGRAPH BY BRENDAN MCDERMID/REUTERS)